Here are the Woodshed quick takes immediately following the oral arguments. In-depth coverage from Carolina Journal will follow. This post will also be updated.
A coalition of Republican-appointed justices on the U.S. Supreme Court appears to be coalescing around a middle ground that would find in favor of the North Carolina General Assembly in Moore v. Harper that would limit gross overreach by a state court in congressional redistricting. In essence, several lawmakers suggested in this particular case, the North Carolina Supreme Court assumed the role of the legislature rather than a check on the legislature.
In three hours of oral argument, key Republican-appointed justices appeared accepting of the argument from the North Carolina General Assembly that in some extremely egregious cases, as is the case with the North Carolina State Supreme Court throwing out two sets of legislatively passed congressional redistricting maps and drawing their own, state courts can violate the federal constitution.
The state courts would violate the U.S. elections clause when they heavily restrict or functionally eliminate a state legislature’s role in regulating federal elections.
It is clear that the three Democratic-appointed liberal justices — Jackson, Kagan, and Sotomayor — strongly reject the independent state legislature theory. At least three conservative justices — Alito, Gorsuch, and Thomas — accepted broad views of the theory.
A finding in support of the North Carolina legislature would require two of Chief Justice Roberts, Justices Barrett and/or Kavanaugh to join justices Alito, Gorsuch, and Thomas for a majority opinion.
These three Justices appeared to coalesce around some sort of middle-of-the-road view, that would apply to congressional redistricting, but not all sorts of state regulations on federal elections as feared by liberals. Chief Justice Roberts was looking for some kind of manageable standard.
Barrett articulated a standard that it is a constitutional violation when a state court grossly overrides the redistricting functions of a legislature.
Barrett and Roberts explored in great detail a middle ground that would impose some meaningful limits on state supreme court justices’ ability to usurp nearly all legislative ability and in setting the time, place, and manner for federal elections.
Even some liberal justices appeared to be taken back by those on the other side of the podium arguing that a state court could simply apply a general state constitutional fairness standard to congressional maps drawn by the legislature, allowing state courts to reject maps and substitute their own at will with no clearly defined standards.
Carolina Journal has covered this case in-depth in for months, separating fact from fiction. Carolina Journal has contended that a middle ground was likely, and the oral arguments backed that up. The questions presented from the court today clearly show a sweeping ruling impacting all kinds of election regulations is not on the table but only a ruling restricting extreme state judicial overreach in congressional redistricting.
Another interesting point, despite considerable debate in briefs filed at the court, oral arguments did not even bring up a controversial South Carolina founding father that had become central to the debate.